A military judge ruled Tuesday that defense attorneys could call former CIA officials as witnesses in their bid to derail the death-penalty trial of the alleged USS Cole bombing plotter, who was waterboarded in the spy agency’s secret prison network, the Black Sites.
The one-page ruling by Air Force Col. Vance Spath, the judge, authorized Witnesses A, B, C and D.
Defense lawyers for Abd al Rahim al Nashiri named the four witnesses in court in December:
Former CIA General Counsel John Rizzo and Jose Rodriguez Jr., the spy agency’s clandestine service chief who in 2005 ordered the destruction of videotapes over Rizzo’s advice — as well as James Mitchell and Bruce Jessen, psychologists who designed and implemented the interrogation techniques captured in the destroyed videos.
None of those men has ever testified in a court.
Nashiri, who is Saudi, is accused of overseeing the Oct. 12, 2000, suicide bombing of the U.S. Navy warship off Aden, Yemen, at the behest of Osama bin Laden. Seventeen sailors died in that attack, and dozens more were wounded.
Defense lawyers argue that Rodriguez’s decision to destroy the videotapes deprives Nashiri of critical evidence he needs for a fair trial. In December, defense attorney Rick Kammen argued for pretrial testimony from the four men about the tapes’ destruction and their contents in a motion to abate, or suspend, the trial over the illegal destruction of the videotapes.
The lead prosecutor, Mark Miller, called the testimony irrelevant and the issue premature. Once the government turns over all the evidence the defense lawyers seek, he said, there would be time for a motion to dismiss over outrageous government conduct, if appropriate.
There were 91 tapes in all, and they had been held in a safe at the CIA station in Thailand, the country where Nashiri and another, now uncharged detainee known as Abu Zubaydah were interrogated. Their destruction led to the Senate Intelligence Committee’s study, known as The Torture Report, on the CIA interrogation program.
The Senate study shows that not only was Nashiri waterboarded during his 2002-06 Black Site custody, but the CIA force-fed him Ensure “rectally” for going on a hunger strike in May 2004. He also was alternately kenneled like a dog in a cage and hung nude by his arms to the point where a medical officer worried his arms would be dislocated.
Other techniques used on him during interrogations included a CIA officer revving a cordless drill by Nashiri’s head while he was blindfolded, cocking a pistol near his head and threatening to sexually abuse his mother.
In seeking the testimony in December, Kammen referred to a recent book, “Enhanced Interrogation” by Mitchell, a former military psychologist and spy agency contractor in the aftermath of the Sept. 11 terror attacks. The book’s subtitle is “Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America.”
In it, Mitchell defends the practice and effectiveness of his enhanced interrogation techniques, and describes how the slight Saudi was too small and slipped from the straps of the waterboard during three sessions of simulated drownings.
He also describes how one interrogator used a “stiff-bristled brush to scrub his ass and balls and then his mouth and blowing cigar smoke in his face until he became nauseous.”
Kammen told Spath in December that, if the judge doesn’t dismiss the case before trial, defense lawyers are entitled to the most graphic possible examples of “what we call torture, they call enhanced interrogation” — maybe “screams, tears, vomit, we don’t know.” Defense lawyers want the details to argue at trial against admissibility of evidence in some instances, and against execution if Nashiri is convicted.